The urgency of climate justice
Business as usual is widely acknowledged as the main driver of ecological collapse and climate breakdown, but less attention is paid to the role of law as usual as an impediment to climate justice. This article analyzes how domestic and international environmental law facilitate injustices against living entities and nature. It calls for a paradigm shift in legal theory, practice, and teaching to reflect the scale and urgency of the unfolding ecological catastrophe.
Section 2 outlines the links between climatic harms and climate injustices. This is followed by discussions of unsustainable law and economic development in sections 3 and 4. Section 5 examines the potential contribution of new materialist legal theory in bringing about a legal paradigm shift that reflects the jurisgenerative role of nature in promoting climate justice.
Climatic harms and climate injustices
Increasingly frequent and extreme disruptive climatic events are adversely impacting water access, food production, physical and mental health, and physical and economic infrastructure—particularly for vulnerable communities around the world (IPCC 2022). The interconnected impacts of climate disasters, air and water pollution, food scarcity, substandard healthcare, and other climate-related hazards plague lower-income, under-invested-in communities disproportionately (Angelsen and Dokken 2018; World Health Organization 2021).
Furthermore, the inequities of environmental vulnerabilities including racial and gender disparities are a symptom of systemic injustices linked to the history of racial injustice in policies and investments within established governing bodies and decision-making processes (Bullard and Johnson 2000; Roberts-Gregory 2021). The unequal distribution of harm is not an accident and is not isolated to one country or region; in many places, including the USA (Bullard and Johnson 2000), industrial facilities for fossil fuel extraction, refining, and distribution have been intentionally relegated to poorer communities and communities of color by policymakers at all levels of government (McLeod 2007).
The global injustice of those countries that have contributed the least to the climate crisis are among the most vulnerable is now widely acknowledged (Watts et al. 2021). It is unjust that countries with virtually no contribution to the climate crisis are more quickly and intensely falling victim to temperature rise, increasingly unpredictable weather disrupting livelihoods and food production, limited resources exacerbating armed conflict, and forced climate migration caused by the consumption and pollution of industrialized nations (United Nations Meetings Coverages and Press Releases 2019). Many of these inequitable exposures and vulnerabilities directly result from colonial legacies of violently coopting environments and resources from communities for unsustainable extraction (Howitt 2020).
Law as usual as an impediment to climate justice
Given the pervasiveness of these injustices, a transformative climate justice lens is imperative for effective climate action (Sultana 2022). The inadequacy of humanity’s response to the climate crisis over the past 30 years can be attributed, at least in part, to climate isolationism, the common framing of climate change as an isolated, discrete, scientific problem in need of economic and technological solutions (Stephens 2020, 2022a).
When the climate crisis is framed as a scientific problem in need of a technological fix, public discourse and imagination on changing the underlying societal and economic structures is constrained. Climate isolationism is a form of climate obstruction (Ekberg et al. 2022; Lamb et al. 2020) because it delays climate action by obfuscating links between the worsening climate crisis and the concentration of wealth and power among those profiting from maintaining fossil fuel reliance who are resisting transformative change (Stephens 2020, 2022b).
The silos of higher education have perpetuated climate isolationism by emphasizing and supporting physical science and technological innovation to address climate change. Despite efforts to diversify science and engineering, persistent racial, gendered, and economic injustices of our economy and educational systems perpetuate exclusive access to science and engineering (Valantine and Collins 2015). The lack of diversity within the fields of physical science and engineering limits the scope of inquiry and constrains the types of connections that are made among science, technology, and society (Stephens 2020).
Unsustainable law and economic development
Many colleges and universities sustain patriarchal leadership structures as they promote technocratic individualistic goals prioritizing the future financial success of their students and alumni and partnerships that serve corporate interests. The financialization of higher education has limited institutional commitments to prioritizing the public good and civic engagement. The problematic influence of the private sector and corporate interests in higher education is clear when one considers how and why fossil fuel companies have strategically supported higher education research since the 1950s (Westervelt 2021).
The influence of the Koch family on higher education research (Leonard 2019) is the most widely recognized higher education funding source to promote climate denial and strategically resist climate action, but a larger network of climate change counter movement (CCCM) has focused providing financial support to colleges and universities to strategically resist climate action and efforts to reduce fossil fuel reliance (McKie 2021; Westervelt 2021). Because higher education has been prioritizing private interests rather than the public good by accepting funds to amplify climate denial and promoting climate isolationism, transformational changes in how higher education functions and interacts with corporate interests, the public sector, and marginalized communities are needed.
New materialist legal theory and climate justice
While technology is an essential part of a transition toward a more just, equitable, and climate stable future, investments in physical science and technological innovation have not yet been adequately balanced with investments in social science, social infrastructure, social innovations, and social justice (Overland and Sovacool 2020). This lack of investment has failed to strengthen social ties, thereby reducing community resilience—our ability to collectively cope with and recover from crises (Aldrich 2012).
The lack of investment in social innovation and social justice has also constrained our imaginations about the role and potential impact of higher education in society. This narrow approach has begun to shift as there is growing recognition that addressing climate change will require investing in transformative social, institutional, financial, and political changes (Overland and Sovacool 2020).
New materialist legal theory offers a promising avenue for a legal paradigm shift that reflects the jurisgenerative role of nature in promoting climate justice. Scholars in this emerging field highlight how the law has historically been shaped by an anthropocentric worldview that fails to recognize the inherent rights and agency of non-human nature (Grear 2015, 2017a; Philippopoulos-Mihalopoulos 2011a, 2011b). By reconceptualizing the relationship between humans, nature, and the law, new materialist approaches can challenge the individualistic, extractive, and exploitative orientation of the current legal system (Grear 2018; Kotzé et al. 2021).
For example, the recognition of the legal personhood of natural entities, such as rivers, forests, and ecosystems, can help reframe environmental law and policy around the protection and flourishing of these living systems, rather than solely human interests (Cano Pecharroman 2018; Magallanes 2015). Similarly, a focus on the material agency and “vibrant matter” of the more-than-human world can inspire legal reforms that better account for the interconnectedness of social and ecological processes (Bennett 2010; Philippopoulos-Mihalopoulos 2015).
By shifting the underlying assumptions and orientations of the law, new materialist approaches can open up possibilities for a legal paradigm that is more attentive to the needs of marginalized communities, future generations, and the Earth system as a whole. This paradigm shift is crucial for translating the moral and political imperatives of climate justice into concrete legal frameworks and institutions.
Conclusion
The climate crisis demands a radical rethinking of the role of law in society. As this article has argued, the dominant legal paradigm has often functioned as an impediment to climate justice, by reinforcing anthropocentric worldviews, technocratic solutions, and the concentration of wealth and power. Overcoming this obstacle requires a fundamental shift in how we conceptualize the relationship between humans, nature, and the law.
New materialist legal theory offers a promising avenue for this paradigm shift, by reconceptualizing the legal subject, foregrounding the agency of the more-than-human world, and inspiring legal reforms that are attentive to the needs of marginalized communities, future generations, and the Earth system as a whole. Only by undertaking this transformative change in legal theory and practice can we hope to create the conditions for a truly just and sustainable future.
